Chief Judge Judith S. Kaye's quarter century on New York's highest court comes to an end in 3 months. The idiotic state requirement that Court of Appeals judges retire at the age of 70 has forced the retirement of great judges. Indeed, it has forced their retirement, and thus robbed the state of their experience and wisdom, just as many of them were reaching their zenith as jurists.
In recent years, Albert Rosenblatt, Howard Levine, Richard Simons, and Stewart Hancock all had to retire at their peak. When they were their wisest and most seasoned--and still ascending. And now that is happening to Judith Kaye. The mandatory age retirement--at least at the age of 70--has got to go!
Now that I've gotten that off my chest, let's get back to the purpose here.
What were the high points of Kaye's tenure on the court? Specifically, the best of her decisions and opinions. (I.e., so not including administrative achievements or judiciary-related service or extra-judicial scholarship.) Out of 25 years of judicial writings, what were the highlights? If, say, a top ten had to be selected, what would be on that list? Well, as Kaye's tenure is coming to a close--and as I have been thinking about it and am being asked to comment on it--it seems that coming up with a list of her best would not be a bad a way to recap. It might help get a handle on the rather enormous body of majority, concurring, and dissenting opinions that she has authored as an Associate Judge and then Chief Judge. And, in any event, top ten lists are usually fun.
So, I put together a list. It's mostly a quick, off-the-top-of-my-head list. That makes it somewhat tentative and subject to modification. There's probably at least one overlooked opinion that's even better than one that's on the list. But I think it's a pretty good top ten, and I'll defend it.
Let's start with the first half of the list and leave the others for next time--just to keep this post from getting too long. Here, then, are the first five--in no particular order:
1) In Re Jacob (1995) - majority opinion holding that being gay or lesbian is not a disqualification for becoming an adoptive parent in New York.
2) Immuno AG. v. Moor-Jankowski (1991) - majority opinion holding that freedom of the press is greater in New York than the minimal protections required by the Supreme Court's interpretation of the First Amendment; specifically, in this case, Kaye's opinion adopted the rule that the publication of an opinion is not subject to a defamation lawsuit, even if some part of that opinion can be viewed as a statement of fact.
3) Campaign for Fiscal Equity v. State (2003) - majority opinion holding that, in accord with the state constitution's guarantee of a public education, the state must insure that all public school districts--rich and poor, and that's the point--get the funding and facilities necessary to offer their students at least the basics of an education.
4) People v. Bing (1990) - dissenting opinion arguing that the court should reaffirm its precedent which gave criminal defendants a very protective right to counsel, namely that a defendant who was being represented by a lawyer in one criminal matter could not be questioned by the police on any, even unrelated criminal matters without the lawyer being present.
[I personally agree with the majority, which did overrule that former right to counsel rule. The point here, however, is that Kaye's dissent was a very thoughtful and strong argument in favor of that rule and against overruling precedent simply because it was disfavored by a changed membership of the court. Additionally, Bing is one of those cases in which the majority opinion (by Cuomo-appointee, conservative-Republican Richard Simons) and Kaye's dissenting opinion were both superbly reasoned and articulated arguments for their respective positions. It is, in my view, a prime example of the workings of the best courts and of the finest judges.]
5) Hernandez v. Robles (2006) - dissenting opinion arguing that same-sex couples should enjoy the same right to marry as opposite-sex couples; the denial of that right, for which there is no rational or legitimate justification, is a violation of constitutional equal protection and due process.
[Is there any real question that Kaye's dissent will ultimately be vindicated ? or that the majority's decision and arguments will ultimately be deemed atavistic and clouded by bigotry? Inter-racial marriage, racial integration, gender equality, etc., etc., etc.--even the emancipation of slaves--all were originally rejected by legislatures and courts whose decisions, based on tradition, moral, religious, and pseudo-scientific justifications, are now viewed with regret, shame and disgrace. The only question regarding same-sex marriage (especially in New York and other more "enlightened" states that have not yet approved same-sex marriages or unions) is: this generation or the next?]
So there's the first five (again in no particular order) of my Kaye top ten. The next five in the next post.
Friday, September 26, 2008
Wednesday, September 24, 2008
GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues)
There are words, and there are pictures. Here is a recap in pictures--okay, graphs--of the previous 2 posts on the New York Court Watcher: the Court's "defining decisions" last term dealing with discrimination and cultural issues.
Three graphs. (Click on them for a bigger, better look.) The first depicts the Justices' voting in the 4 discrimination cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination) (September 16, 2008).
Yep. There's the Court, there's most of the Justices, and then there's Scalia and Thomas. Hey, like it or not, good or bad, that's how they voted. For those 2, some other interest or value was superior to fighting (or seeing) discrimination in each of the cases.
The second graph depicts the Justices' voting in the 5 culturally charged cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), (September 20, 2008). You'll see that the Justices are rearranged. In each graph they are ordered from left to right according to their voting records along the liberal-conservative spectrum for the cases involved.
A bit different. A few things pop out. The Court--and Kennedy--are half and half in these cases. (Liberal and conservative, that is.) Scalia and Thomas are again at the far right end of the Court, taking the more conservative position in every case. On the other hand, Souter and Ginsburg are the sole occupiers of the liberal-most end of the Court; only they voted on the culturally liberal side in all 5 cases. And, finally, you'll notice some 1/2 votes for some Justices, and 1/2 decisions for the Court. It's about the Baze decision on lethal injections. I thought it most accurate to treat the votes this way. Against lethal injection as liberal (Souter and Ginsburg). For lethal injection, and any other means of execution not like those historically "torturous modes" "deliberately designed to inflict pain," as conservative (Scalia and Thomas). And for lethal injection, but because it was not shown to pose any real risk of severe pain that could reasonably be avoided by some alternative method, as 1/2 liberal and 1/2 conservative (Roberts, Stevens, Kennedy, Breyer, Alito, and the Court itself).
The third graph merely combines the first 2 to get a full picture of the liberal-conservative spectrum based on the Justices' political/ideological/philosophical voting in the discrimination and cultural issues cases together.
There it is. That's the Court. At least on these 2 sets of "defining decisions." And that's just about the spectrum that Court watchers have been observing generally--take or leave some votes here and there. Certainly the ideological ends and sides of the Court are exactly what would be expected. And moderate-swing vote Kennedy right in the middle. Not bad for 9 cases.
One final note.
Now a mere 9 decisions--4 on discrimination and 5 on cultural issues--may seem a bit thin to be deemed "defining." But just think of this. A coin is flipped 9 times. Every time it's heads. Wouldn't you be a bit skeptical? You think the coin just might be biased? At least a bit? Well the odds of 9 out of 9 heads actually happening randomly are 1 in 512. A probability of .5 to the 9th power, or .0019. Now THAT's what's pretty thin. So just say a Supreme Court Justice happened to vote "heads" in every one of 9 difficult, ideologically/politically charged, "reasonable people could disagree" cases. You think that Justice, like the coin, just might be biased? Let's be delicate and call the Justice "philosophically predisposed." And a Justice with a more even voting record, is probably less predisposed--at least along the same political/ideological/philosophical lines.
..............And that, of course, is why it's so important who's elected President and what sort of Justice(s) he's likely to appoint.
Tne next "defining decisions" post will look at "law and order" cases.
Three graphs. (Click on them for a bigger, better look.) The first depicts the Justices' voting in the 4 discrimination cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination) (September 16, 2008).
GRAPH 1: Discrimination Decisions
Yep. There's the Court, there's most of the Justices, and then there's Scalia and Thomas. Hey, like it or not, good or bad, that's how they voted. For those 2, some other interest or value was superior to fighting (or seeing) discrimination in each of the cases.The second graph depicts the Justices' voting in the 5 culturally charged cases discussed in Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), (September 20, 2008). You'll see that the Justices are rearranged. In each graph they are ordered from left to right according to their voting records along the liberal-conservative spectrum for the cases involved.
GRAPH 2: Cultural Issues Decisions
A bit different. A few things pop out. The Court--and Kennedy--are half and half in these cases. (Liberal and conservative, that is.) Scalia and Thomas are again at the far right end of the Court, taking the more conservative position in every case. On the other hand, Souter and Ginsburg are the sole occupiers of the liberal-most end of the Court; only they voted on the culturally liberal side in all 5 cases. And, finally, you'll notice some 1/2 votes for some Justices, and 1/2 decisions for the Court. It's about the Baze decision on lethal injections. I thought it most accurate to treat the votes this way. Against lethal injection as liberal (Souter and Ginsburg). For lethal injection, and any other means of execution not like those historically "torturous modes" "deliberately designed to inflict pain," as conservative (Scalia and Thomas). And for lethal injection, but because it was not shown to pose any real risk of severe pain that could reasonably be avoided by some alternative method, as 1/2 liberal and 1/2 conservative (Roberts, Stevens, Kennedy, Breyer, Alito, and the Court itself).The third graph merely combines the first 2 to get a full picture of the liberal-conservative spectrum based on the Justices' political/ideological/philosophical voting in the discrimination and cultural issues cases together.
GRAPH 3: Discrimination + Cultural Issues Decisions
There it is. That's the Court. At least on these 2 sets of "defining decisions." And that's just about the spectrum that Court watchers have been observing generally--take or leave some votes here and there. Certainly the ideological ends and sides of the Court are exactly what would be expected. And moderate-swing vote Kennedy right in the middle. Not bad for 9 cases.One final note.
Now a mere 9 decisions--4 on discrimination and 5 on cultural issues--may seem a bit thin to be deemed "defining." But just think of this. A coin is flipped 9 times. Every time it's heads. Wouldn't you be a bit skeptical? You think the coin just might be biased? At least a bit? Well the odds of 9 out of 9 heads actually happening randomly are 1 in 512. A probability of .5 to the 9th power, or .0019. Now THAT's what's pretty thin. So just say a Supreme Court Justice happened to vote "heads" in every one of 9 difficult, ideologically/politically charged, "reasonable people could disagree" cases. You think that Justice, like the coin, just might be biased? Let's be delicate and call the Justice "philosophically predisposed." And a Justice with a more even voting record, is probably less predisposed--at least along the same political/ideological/philosophical lines.
..............And that, of course, is why it's so important who's elected President and what sort of Justice(s) he's likely to appoint.
Tne next "defining decisions" post will look at "law and order" cases.
Saturday, September 20, 2008
Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues)
This is the second in a series of 4 posts on the New York Court Watcher exploring the current political-legal state of the Court. 15 decisions from last term were selected, not for any magic in that number, but rather because those 15 seem especially telling about the ideological and philosophical voting patterns of the individual justices. The last post looked at discrimination cases. The results of that examination were not entirely surprising, not entirely expected, and, with respect to the Court's newest member, were undoubtedly different than what would have been predicted from someone called "Scalito." (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008; but see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008).
This post looks at 5 decisions grouped as "cultural issues" because, well, they seem to me to deal with issues that engender a rather high intensity of "cultural" divisiveness. And, indeed, these decisions are divided. And also (yes, Sister Mary Grace would be appalled at my grammar & syntax; but it seems to fit here), the divisions are clearly deep. The decisions involve guns, the death penalty, war, and international law.
Let's first look at each of the 5 decisions, including the legal rulings, the cultural wedges, and the justices' votes. Then we'll take a look at all the decisions and votes as a whole to see what patterns emerge and what they tell us. (Of course, you can just skip to the last couple of paragraphs for the recap. I confess, it's not exactly a Hitchcock ending.) Here are the decisions:
District of Columbia v. Heller (2008) - the right to bear arms in the Second Amendment is a fundamental right of individuals, not just states; the D.C. ban on handguns violated that right.
Cultural wedge: guns versus gun control.
Votes (5-4): Roberts, Scalia [wrote Court's opinion], Kennedy, Thomas, and Alito versus Stevens [wrote dissent], Souter, Ginsburg, and Breyer [also wrote a dissent].
Kennedy v. Louisiana (2008) - capital punishment is a disproportionate and, thus, unconstitutional penalty for child rape.
Cultural wedges: death penalty versus evolving standards; severe punishment for heinous crime versus proportionality and restraint.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].
Baze v. Rees (2008) - lethal injection is a constitutionally valid form of capital punishment, unless the particular method poses a real risk of reasonably avoidable severe pain.
Cultural wedge: death penalty versus prohibition on cruel punishment.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent]. (Yeah, divisions within divisions on this one!)
Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice (ICJ), even where the President declares the ruling to be obligatory international law. (A brief summary of the background will underscore the political-legal implications: In state courts around this country, including in Texas, Mexican and other foreign nationals had been criminally prosecuted without an opportunity to seek help from their nations' embassies. That violates the Vienna Convention, a treaty ratified by the United States. The ICJ ruled that the foreign nationals have a right to a hearing in the American courts to reconsider their convictions in light of the treaty violations. The President issued a memorandum declaring the ICJ ruling to be binding international law, and the United States government argued the same at the United States Supreme Court. Nevertheless, the Supreme Court sided with Texas which refused to follow the ICJ ruling--including in this murder case which resulted in a death sentence. Ahhhh, the implications!!)
Cultural wedges: local/state government versus international law; nationalism versus internationalism; law and order versus international rights of the accused.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.
Boumediene v. Bush (2008) - alien detainees held at Guantanamo Bay are entitled to a habeas corpus hearing to review their "enemy combatant" status.
Cultural wedges: war on terror versus due process; the President versus the Justices.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter [wrote concurring opinion], Ginsburg, and Breyer versus Roberts [wrote dissent], Scalia [also wrote a dissent], Thomas, and Alito.
There are the 5 decisions. In short: yes to gun rights, yes to lethal injection, and no to the ICJ; but then, no to the death penalty for child rape and yes to habeas corpus for Guantanamo detainees. So 3 for the cultural conservatives; 2 for the cultural liberals.
[Disclosure time. I agree with the Court's decisions on gun rights, lethal injection, and habeas corpus for the Guantanamo detainees, but disagree with the decisions on the ICJ and on the death penalty for child rape. I've discussed some of these in previous posts. (See Supreme Court: Right on the Gun Right, June 27, 2008; Supreme Court: No Death Penalty for Child Rape, June 25, 2008; The Boumediene Decision: 5 to 4 ??, June 14, 2008. And more generally, see Supreme Court's 5-4 Hottest Hot-Buttons: Decision By Ideological Division (Of Course!), July 25, 2008.) So, like the Court, that puts me with the cultural conservatives on 3 of the decisions and with the cultural libs on 2, even though my mix is different.]
Unlike the Court itself (or me, see above), the four conservative justices voted for the culturally conservative position in all 5 cases. Roberts, Scalia, Thomas, and Alito constituted a monolithic conservative bloc, taking the culturally conservative side in every case.
On the other hand, the liberals were not quite so uniformly unanimous. Only two of them, Souter and Ginsburg, voted for the culturally liberal position in every case. Stevens and Breyer voted with the conservatives on lethal injection. And Stevens voted with the conservatives again on the ICJ.
Moderate-conservative swing vote Kennedy voted for the culturally conservative position in 3 cases and the cultually liberal position in 2. He was on the winning/majority side of the Court in all 5 cases.
Finally, although the current Court is clearly conservative politically, culturally, and philosophically, it's decisions are not always conservative. Even in the emotionally and ideologically charged cases. The four strongly conservative justices are not always able to get the vote of one more colleague. Even when all four of the conservatives vote together. Indeed, even when they do vote together and do get at least one more vote to make a majority, they don't always agree on the reasoning. That is, in plainspeak, they don't always agree on what the law is--or should be--that led to the decision in the case. And sometimes the differences are stark. Sometimes some of the conservative justices, even when voting for the culturally conservative position, adopt reasoning--i.e., again governing law--that sounds awfully liberal. Especially when contrasted with the reasoning of the other conservative justices.
Take, for example the Baze case, where the Court approved lethal injection. The Court's opinion, written by Roberts, adopted the position that a particular method of lethal injection, or any other method of execution, would be unconstitutional if it caused needless suffering. Put more legalistically, a method of execution would be unconstitutionally cruel and unusual if there was a substantial risk of severe pain that could be significantly reduced by a readily available alternative method. In plain English: no more pain than really necessary. But even though the Court approved the lethal injection at issue in the case, a couple of justices found the standard enunciated by the Court to be far too soft--too namby-pamby, so to speak.
You guessed right: Scalia and Thomas. For them, an execution method is only unconstitutional when it is specifically intended to cause suffering. "Only if it is deliberately designed to inflict pain," in Thomas's words joined by Scalia. "Burning at the stake," "public dissection," "[dis]emboweling," "quartering"--only these and similarly "torturous modes of punishment" were intended to be and, thus, are unconstitutional according to those two.
The point is that although the conservative justices all voted for the same result in all of these 5 "cultural issues" cases, there are some clear differences among them. Just as there are among the liberals. Certainly, Scalia and Thomas seem to be in a category by themselves. (Along those same lines, again see Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008.) And if one were to sort out the justices from the most conservative to the most liberal--at least according to these "cultural issues" decisions, as well as the discrimination decisions examined previously--the spectrum might look like this:
Most Culturally Conservative....to
....Most Culturally Liberal
Scalia, Thomas..........Roberts, Alito.............Kennedy.......
.......Stevens....Breyer...Souter, Ginsburg
The next post on "defining decisions" will look at "law and order."
This post looks at 5 decisions grouped as "cultural issues" because, well, they seem to me to deal with issues that engender a rather high intensity of "cultural" divisiveness. And, indeed, these decisions are divided. And also (yes, Sister Mary Grace would be appalled at my grammar & syntax; but it seems to fit here), the divisions are clearly deep. The decisions involve guns, the death penalty, war, and international law.
Let's first look at each of the 5 decisions, including the legal rulings, the cultural wedges, and the justices' votes. Then we'll take a look at all the decisions and votes as a whole to see what patterns emerge and what they tell us. (Of course, you can just skip to the last couple of paragraphs for the recap. I confess, it's not exactly a Hitchcock ending.) Here are the decisions:
District of Columbia v. Heller (2008) - the right to bear arms in the Second Amendment is a fundamental right of individuals, not just states; the D.C. ban on handguns violated that right.
Cultural wedge: guns versus gun control.
Votes (5-4): Roberts, Scalia [wrote Court's opinion], Kennedy, Thomas, and Alito versus Stevens [wrote dissent], Souter, Ginsburg, and Breyer [also wrote a dissent].
Kennedy v. Louisiana (2008) - capital punishment is a disproportionate and, thus, unconstitutional penalty for child rape.
Cultural wedges: death penalty versus evolving standards; severe punishment for heinous crime versus proportionality and restraint.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].
Baze v. Rees (2008) - lethal injection is a constitutionally valid form of capital punishment, unless the particular method poses a real risk of reasonably avoidable severe pain.
Cultural wedge: death penalty versus prohibition on cruel punishment.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent]. (Yeah, divisions within divisions on this one!)
Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice (ICJ), even where the President declares the ruling to be obligatory international law. (A brief summary of the background will underscore the political-legal implications: In state courts around this country, including in Texas, Mexican and other foreign nationals had been criminally prosecuted without an opportunity to seek help from their nations' embassies. That violates the Vienna Convention, a treaty ratified by the United States. The ICJ ruled that the foreign nationals have a right to a hearing in the American courts to reconsider their convictions in light of the treaty violations. The President issued a memorandum declaring the ICJ ruling to be binding international law, and the United States government argued the same at the United States Supreme Court. Nevertheless, the Supreme Court sided with Texas which refused to follow the ICJ ruling--including in this murder case which resulted in a death sentence. Ahhhh, the implications!!)
Cultural wedges: local/state government versus international law; nationalism versus internationalism; law and order versus international rights of the accused.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.
Boumediene v. Bush (2008) - alien detainees held at Guantanamo Bay are entitled to a habeas corpus hearing to review their "enemy combatant" status.
Cultural wedges: war on terror versus due process; the President versus the Justices.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter [wrote concurring opinion], Ginsburg, and Breyer versus Roberts [wrote dissent], Scalia [also wrote a dissent], Thomas, and Alito.
There are the 5 decisions. In short: yes to gun rights, yes to lethal injection, and no to the ICJ; but then, no to the death penalty for child rape and yes to habeas corpus for Guantanamo detainees. So 3 for the cultural conservatives; 2 for the cultural liberals.
[Disclosure time. I agree with the Court's decisions on gun rights, lethal injection, and habeas corpus for the Guantanamo detainees, but disagree with the decisions on the ICJ and on the death penalty for child rape. I've discussed some of these in previous posts. (See Supreme Court: Right on the Gun Right, June 27, 2008; Supreme Court: No Death Penalty for Child Rape, June 25, 2008; The Boumediene Decision: 5 to 4 ??, June 14, 2008. And more generally, see Supreme Court's 5-4 Hottest Hot-Buttons: Decision By Ideological Division (Of Course!), July 25, 2008.) So, like the Court, that puts me with the cultural conservatives on 3 of the decisions and with the cultural libs on 2, even though my mix is different.]
Unlike the Court itself (or me, see above), the four conservative justices voted for the culturally conservative position in all 5 cases. Roberts, Scalia, Thomas, and Alito constituted a monolithic conservative bloc, taking the culturally conservative side in every case.
On the other hand, the liberals were not quite so uniformly unanimous. Only two of them, Souter and Ginsburg, voted for the culturally liberal position in every case. Stevens and Breyer voted with the conservatives on lethal injection. And Stevens voted with the conservatives again on the ICJ.
Moderate-conservative swing vote Kennedy voted for the culturally conservative position in 3 cases and the cultually liberal position in 2. He was on the winning/majority side of the Court in all 5 cases.
Finally, although the current Court is clearly conservative politically, culturally, and philosophically, it's decisions are not always conservative. Even in the emotionally and ideologically charged cases. The four strongly conservative justices are not always able to get the vote of one more colleague. Even when all four of the conservatives vote together. Indeed, even when they do vote together and do get at least one more vote to make a majority, they don't always agree on the reasoning. That is, in plainspeak, they don't always agree on what the law is--or should be--that led to the decision in the case. And sometimes the differences are stark. Sometimes some of the conservative justices, even when voting for the culturally conservative position, adopt reasoning--i.e., again governing law--that sounds awfully liberal. Especially when contrasted with the reasoning of the other conservative justices.
Take, for example the Baze case, where the Court approved lethal injection. The Court's opinion, written by Roberts, adopted the position that a particular method of lethal injection, or any other method of execution, would be unconstitutional if it caused needless suffering. Put more legalistically, a method of execution would be unconstitutionally cruel and unusual if there was a substantial risk of severe pain that could be significantly reduced by a readily available alternative method. In plain English: no more pain than really necessary. But even though the Court approved the lethal injection at issue in the case, a couple of justices found the standard enunciated by the Court to be far too soft--too namby-pamby, so to speak.
You guessed right: Scalia and Thomas. For them, an execution method is only unconstitutional when it is specifically intended to cause suffering. "Only if it is deliberately designed to inflict pain," in Thomas's words joined by Scalia. "Burning at the stake," "public dissection," "[dis]emboweling," "quartering"--only these and similarly "torturous modes of punishment" were intended to be and, thus, are unconstitutional according to those two.
The point is that although the conservative justices all voted for the same result in all of these 5 "cultural issues" cases, there are some clear differences among them. Just as there are among the liberals. Certainly, Scalia and Thomas seem to be in a category by themselves. (Along those same lines, again see Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination), September 16, 2008.) And if one were to sort out the justices from the most conservative to the most liberal--at least according to these "cultural issues" decisions, as well as the discrimination decisions examined previously--the spectrum might look like this:
Most Culturally Conservative....to
....Most Culturally Liberal
Scalia, Thomas..........Roberts, Alito.............Kennedy.......
.......Stevens....Breyer...Souter, Ginsburg
The next post on "defining decisions" will look at "law and order."
Tuesday, September 16, 2008
Supreme Court's 2007-08 Term: The Defining Decisions (Part 1: Discrimination)
As noted a few days ago on the New York Court Watcher, the 67 cases decided by the Supreme Court (or 71, depending on what is counted) can be distilled to a few which seem to define the 2007-08 term. (See Supreme Court's 2007-08 Term: The Defining Decisions (Intro), September 11, 2008.) My own distillation narrowed the Court's decisional output to 15. These seem particularly helpful in gaining insight into the political-legal direction of the Court and the ideological-philosophical voting of the individual justices. These 15 decisions can be grouped into four categories: discrimination, cultural issues, law and order, and the political process.
This post looks at the discrimination decisions. There are 4 of them. (The Court decided more than 4 discrimination cases last term. But these 4--like the rest of the 15 total decisions I've culled--generated particularly adamant disagreements and thus are particularly revealing.) They involve racial discrimination, age discrimination, employment, retaliation, and jury selection. Together, they paint a vivid picture. Here they are:
CBOCS West, Inc. v. Humphries (2008) - the prohibition of racial discrimination under 42 U.S.C 1981 includes the prohibition of retaliation for complaining about racial discrimination. The vote was Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer [wrote the Court's opinion], and Alito versus Scalia and Thomas [wrote the dissent].
Gomez-Perez v. Potter (2008) - the prohibition of age discrimination under the Age Discrimination in Employment Act [ADEA] includes the prohibition of retaliation for complaining about age discrimination. Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Roberts [wrote dissent], Scalia, and Thomas [also wrote dissent].
Federal Express Corp. v. Holowecki (2008) - any request for the Equal Employment Opportunity Commission to act satisfies the ADEA's requirement of a "charge alleging unlawful discrimination" as a precondition for filing a lawsuit. Roberts, Stevens, Kennedy [wrote for Court], Souter, Ginsburg, Breyer, and Alito versus Scalia and Thomas [wrote dissent].
Snyder v. Louisiana (2008) - the prosecutor's explanation for eliminating a black juror was implausible and should not have been accepted by the trial judge. Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Scalia and Thomas [wrote dissent].
A few facts jump out immediately:
The Court upheld the complaint of unlawful discrimination in every case.
Scalia and Thomas saw no legitimate complaint in any of them.
Liberal Justices Stevens, Souter, Ginsburg and Breyer were in the majority in every case, finding a legitimate complaint in each one.
Moderate, swing-Justice Kennedy was with the liberal majority in every case.
Conservative Justice Alito was likewise with the liberal majority in every case.
Conservative Chief Justice Roberts was with the liberal majority in 3 cases and with Scalia and Thomas in 1.
Let's be clear about these 4 cases. In each one, there was a claim of discrimination. In CBOCs and in Snyder, the claim was racial discrimination. In CBOCS it was in employment; in Snyder it was in jury selection. In CBOCS the complainant suffered retaliation for complaining about racial discrimination; in Snyder the complainant was convicted in a capital case by a jury apparently selected in part by the prosecutor's race-based voir dire. In both cases the Court concluded that there was unlawful discrimination and ruled in favor of the complainant. In both cases the 4 liberal justices were joined by moderate-swing Kennedy and conservatives Roberts and Alito. The liberals plus 3. That is, a majority of 7, including a moderate and 2 conservatives, agreed with the complainant in each case that he was the victim of racial discrimination. Only Scalia and Thomas saw no problem.
In Gomez-Perez and in Federal Express, the claim was age discrimination. In Gomez-Perez (as in CBOCS) the claim was retaliation for registering a discrimination complaint; in Federal Express the complainant brought a lawsuit after making an unsuccessful request to the EEOC for remedial action. In both cases the Court ruled for the complainant: in one holding that retaliation is unlawful and, in the other, that any request for remedial action is sufficient to permit a lawsuit. In both cases, the 4 liberal justices were again joined by moderate-swing Kennedy and conservative Alito. In Federal Express, those 6 were joined by conservative Roberts. Only Scalia and Thomas voted against the discrimination complainant in both cases.
Yes, the 4 liberal justices sided with the discrimination complainant in all 4 cases. But in each case they were part of Court majorities that included moderate-swing Kennedy and conservative Alito. In 3 of the 4 cases they were also joined by conservative Roberts. In short, these were no purely liberal victories. These were bi-ideological victories with only the same two justices, Scalia and Thomas, never finding merit in the position of the party complaining about unlawful race or age discrimination.
On these matters, the Court certainly does not seem to have taken a rightward shift. It has, instead, been sympathetic to such discrimination claims. Simultaneously, the Court has rather marginalized Scalia and Thomas who (if one only connects the dots) appear entirely unsympathetic and even hostile to such claims--repeatedly finding some reason to vote against them.
Notably, the newest conservative additions to the Court are voting with the liberals--at least on these claims of discrimination against racial and age minorities. The new Chief Justice parted company with Scalia and Thomas in 3 out of the 4 cases. Alito parted with them in every one. Indeed, he authored the Court's opinion in 2 of the cases: Gomez-Perez and Snyder. Of particular significance is the latter case. There he found the racial discrimination in jury selection sufficiently repulsive and clear to justify overriding the trial judge who had found otherwise. For doing so, Alito was rebuked by Scalia and Thomas for not putting aside his own finding of racial discrimination and not deferring to the trial judge who found none. As discussed in earlier posts on the New York Court Watcher, the newest justice--although conservative--is not exactly "Scalito." (See Not Exactly "Scalito", June 12, 2008; Not Exactly "Scalito" (Part 2), June 22, 2008. But then again, see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008.)
The next post on the "defining decisions" of the last term will look at 5 cases grouped together as involving "cultural issues." Guns, death penalty, child rape, alien detainees, international law. Stay tuned.
This post looks at the discrimination decisions. There are 4 of them. (The Court decided more than 4 discrimination cases last term. But these 4--like the rest of the 15 total decisions I've culled--generated particularly adamant disagreements and thus are particularly revealing.) They involve racial discrimination, age discrimination, employment, retaliation, and jury selection. Together, they paint a vivid picture. Here they are:
CBOCS West, Inc. v. Humphries (2008) - the prohibition of racial discrimination under 42 U.S.C 1981 includes the prohibition of retaliation for complaining about racial discrimination. The vote was Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer [wrote the Court's opinion], and Alito versus Scalia and Thomas [wrote the dissent].
Gomez-Perez v. Potter (2008) - the prohibition of age discrimination under the Age Discrimination in Employment Act [ADEA] includes the prohibition of retaliation for complaining about age discrimination. Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Roberts [wrote dissent], Scalia, and Thomas [also wrote dissent].
Federal Express Corp. v. Holowecki (2008) - any request for the Equal Employment Opportunity Commission to act satisfies the ADEA's requirement of a "charge alleging unlawful discrimination" as a precondition for filing a lawsuit. Roberts, Stevens, Kennedy [wrote for Court], Souter, Ginsburg, Breyer, and Alito versus Scalia and Thomas [wrote dissent].
Snyder v. Louisiana (2008) - the prosecutor's explanation for eliminating a black juror was implausible and should not have been accepted by the trial judge. Roberts, Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito [wrote for Court] versus Scalia and Thomas [wrote dissent].
A few facts jump out immediately:
The Court upheld the complaint of unlawful discrimination in every case.
Scalia and Thomas saw no legitimate complaint in any of them.
Liberal Justices Stevens, Souter, Ginsburg and Breyer were in the majority in every case, finding a legitimate complaint in each one.
Moderate, swing-Justice Kennedy was with the liberal majority in every case.
Conservative Justice Alito was likewise with the liberal majority in every case.
Conservative Chief Justice Roberts was with the liberal majority in 3 cases and with Scalia and Thomas in 1.
Let's be clear about these 4 cases. In each one, there was a claim of discrimination. In CBOCs and in Snyder, the claim was racial discrimination. In CBOCS it was in employment; in Snyder it was in jury selection. In CBOCS the complainant suffered retaliation for complaining about racial discrimination; in Snyder the complainant was convicted in a capital case by a jury apparently selected in part by the prosecutor's race-based voir dire. In both cases the Court concluded that there was unlawful discrimination and ruled in favor of the complainant. In both cases the 4 liberal justices were joined by moderate-swing Kennedy and conservatives Roberts and Alito. The liberals plus 3. That is, a majority of 7, including a moderate and 2 conservatives, agreed with the complainant in each case that he was the victim of racial discrimination. Only Scalia and Thomas saw no problem.
In Gomez-Perez and in Federal Express, the claim was age discrimination. In Gomez-Perez (as in CBOCS) the claim was retaliation for registering a discrimination complaint; in Federal Express the complainant brought a lawsuit after making an unsuccessful request to the EEOC for remedial action. In both cases the Court ruled for the complainant: in one holding that retaliation is unlawful and, in the other, that any request for remedial action is sufficient to permit a lawsuit. In both cases, the 4 liberal justices were again joined by moderate-swing Kennedy and conservative Alito. In Federal Express, those 6 were joined by conservative Roberts. Only Scalia and Thomas voted against the discrimination complainant in both cases.
Yes, the 4 liberal justices sided with the discrimination complainant in all 4 cases. But in each case they were part of Court majorities that included moderate-swing Kennedy and conservative Alito. In 3 of the 4 cases they were also joined by conservative Roberts. In short, these were no purely liberal victories. These were bi-ideological victories with only the same two justices, Scalia and Thomas, never finding merit in the position of the party complaining about unlawful race or age discrimination.
On these matters, the Court certainly does not seem to have taken a rightward shift. It has, instead, been sympathetic to such discrimination claims. Simultaneously, the Court has rather marginalized Scalia and Thomas who (if one only connects the dots) appear entirely unsympathetic and even hostile to such claims--repeatedly finding some reason to vote against them.
Notably, the newest conservative additions to the Court are voting with the liberals--at least on these claims of discrimination against racial and age minorities. The new Chief Justice parted company with Scalia and Thomas in 3 out of the 4 cases. Alito parted with them in every one. Indeed, he authored the Court's opinion in 2 of the cases: Gomez-Perez and Snyder. Of particular significance is the latter case. There he found the racial discrimination in jury selection sufficiently repulsive and clear to justify overriding the trial judge who had found otherwise. For doing so, Alito was rebuked by Scalia and Thomas for not putting aside his own finding of racial discrimination and not deferring to the trial judge who found none. As discussed in earlier posts on the New York Court Watcher, the newest justice--although conservative--is not exactly "Scalito." (See Not Exactly "Scalito", June 12, 2008; Not Exactly "Scalito" (Part 2), June 22, 2008. But then again, see also Well, Not Exactly NOT "Scalito" Either, August 12, 2008.)
The next post on the "defining decisions" of the last term will look at 5 cases grouped together as involving "cultural issues." Guns, death penalty, child rape, alien detainees, international law. Stay tuned.
Thursday, September 11, 2008
Supreme Court's 2007-08 Term: The Defining Decisions (Intro)
Among the mere 67 cases decided by the Supreme Court last term (71 cases if summary reversals and 4-4 affirmances are included), there are nevertheless more than enough to help us understand the political-legal composition and direction of the Court. Indeed, several decisions seem to stand out as especially revealing about the Court and the individual justices.
My own survey of last term's decisions led me to 15 decisions. That number could have been several higher or lower. There's nothing magic about it. But in identifying decisions that seemed individually and collectively to provide some real insight, I came up with a list that just happened to number 15.
There are common denominators among these decisions. And depending upon which common denominators are emphasized, these decisions can be grouped in various ways. Others might well group them differently than me. But I did it in a way that would focus on ideological and philosophical implications. Here's how I grouped them: discrimination, cultural issues, law and order, and the political process. Of course these categories overlap somewhat. But grouping the decisions this way seemed helpful in getting a sense of the Court as a whole and, even more so, of the individual justices through the patterns in their voting on particular kinds of issues.
The next post begins by looking at the discrimination cases. Race, age, employment, retaliation, jury selection. VERY telling!
My own survey of last term's decisions led me to 15 decisions. That number could have been several higher or lower. There's nothing magic about it. But in identifying decisions that seemed individually and collectively to provide some real insight, I came up with a list that just happened to number 15.
There are common denominators among these decisions. And depending upon which common denominators are emphasized, these decisions can be grouped in various ways. Others might well group them differently than me. But I did it in a way that would focus on ideological and philosophical implications. Here's how I grouped them: discrimination, cultural issues, law and order, and the political process. Of course these categories overlap somewhat. But grouping the decisions this way seemed helpful in getting a sense of the Court as a whole and, even more so, of the individual justices through the patterns in their voting on particular kinds of issues.
The next post begins by looking at the discrimination cases. Race, age, employment, retaliation, jury selection. VERY telling!
Sunday, September 7, 2008
New Mexico Supreme Court: Split Spectrum in Criminal Cases (Part 2: Shifting Trend? )
The previous New York Court Watcher post on the New Mexico Supreme Court discussed the split among the justices in criminal cases. Over the past five years, two of the justices compiled strongly pro-prosecution records, two strongly pro-defendant ones, and one justice's voting record--like the decisional record of the court as a whole--was decidedly in the middle. (See New Mexico Supreme Court: Split Spectrum in Criminal Cases (Part 1: Two + Two + One, August 30, 2008.) To recap, Justices Patricio Serna and Petra Jimenez Maes mostly sided with the prosecution in the divided criminal cases during the last five years; current Chief Justice Edward Chavez and Justice Richard Bosson typically sided with the accused; Justice Pamela Minzner's votes were split almost exactly evenly between the two sides; and the court's decisional record was also somewhat evenly balanced, being only moderately pro-prosecution. The graph from that post depicted it all:
GRAPH 1
But that graph looks a bit different--and the voting and decisional records it depicts also look a bit different--if the last five years it covers are viewed in increasingly shorter, increasingly recent time periods. The records for these shorter periods indicate recent trends that are changing the court's ideological direction in criminal cases. Let's look at those shorter periods. Specifically, let's look at the voting records of the individual justices, as well as the decisional record of the court as a whole, for the most recent three years and for the most recent two years. Then let's see how the records for these time periods compare with those for the entire five year period, and with each other. The following GRAPH 2 does just that:
But that graph looks a bit different--and the voting and decisional records it depicts also look a bit different--if the last five years it covers are viewed in increasingly shorter, increasingly recent time periods. The records for these shorter periods indicate recent trends that are changing the court's ideological direction in criminal cases. Let's look at those shorter periods. Specifically, let's look at the voting records of the individual justices, as well as the decisional record of the court as a whole, for the most recent three years and for the most recent two years. Then let's see how the records for these time periods compare with those for the entire five year period, and with each other. The following GRAPH 2 does just that:
GRAPH 2
As depicted in GRAPH 2, the court's decisional record has become increasingly pro-prosecution over the past five years. For the most recent two year period, the court as a whole sided with the prosecution in 67% of the divided criminal cases. That's twice as frequently as it sided with the defense (33%), and notably more frequently than the court did over the entire five year period (58%). Stated otherwise, it is siding with the prosecution much more in the latter, more recent years of the five year period than it did in the earlier years. The progression from the last five years, to the last three years, to the last two years--58% pro-prosecution to 63% to 67%--is not insignificant. It may not reflect a wholesale reversal of an ideological pattern. But it is, nonetheless, an unmistakeable change. From a roughly balanced, moderately pro-prosecution record, to one that is clearly and increasingly strongly pro-prosecution.
What is the source of this change? Let's take a look at the voting figures.
Interestingly, the court's most pro-prosecution member over the five year period, Justice Serna, actually became considerably less so in recent years. His 81% over the full five years dropped to 74% for the last three years, and dropped further to 67% in the most recent two years. Moreover, his record was the only one among the justices to move in a pro-defendant direction.
The court's other strongly pro-prosecution justice became even more so in recent years. Justice Maes' voting record for the five year, three year and two year periods was 73%, 79%, and 83%, respectively. Not a dramatic pro-prosecution jump. But movement in one direction which was certainly not pro-defendant.
Justice Minzner's voting record also seemed to move somewhat in a pro-prosecution direction overall. But as her 48% to 63% to 56% record for the five, three and two year periods reveals, her voting did not move consistently in a pro-prosecution direction. Also, her record for the entire five years was almost perfectly balanced (pro-defendant by one vote [12 to 11]), and her record for the most recent two years [actually, one year due to her untimely death in August 2007] was likewise almost perfectly balanced (pro-prosecution by one vote [5 to 4]).
That leaves the two members of the court with the strong pro-defendant records over the last five years. Chief Justice Chavez did not alter course. His voting--73%, 68%, and 67% for the five, three, and two year periods-- shows only the slightest proportional increase in pro-prosecution votes. He ended the five year period as he began: with a record clearly showing strong sympathies for arguments made on behalf of the accused.
The story for the other member of the court with an overall pro-defendant record, however, is quite different. Justice Bosson's record shows a significant shift in voting. Indeed, his record changed over the course of the five years from strongly pro-defendant to moderately pro-prosecution. His voting record for the entire five year period was 65% pro-defendant. In the last two years it was 58% pro-prosecution. In short, though he voted nearly twice as frequently for the defense as for the prosecution over the entire five years, in the most recent years he has actually been siding with the prosecution most of the time.
In sum, the fairly dramatic change in Bosson's voting record, together with the slighter change in Maes record, seems largely responsible for the decisional record of the court moving in a pro-prosecution direction. Indeed, moving from one roughly divided between pro-prosecution and pro-defendant rulings, to one which has been strongly pro-prosecution in the most recent years.
As depicted in GRAPH 2, the court's decisional record has become increasingly pro-prosecution over the past five years. For the most recent two year period, the court as a whole sided with the prosecution in 67% of the divided criminal cases. That's twice as frequently as it sided with the defense (33%), and notably more frequently than the court did over the entire five year period (58%). Stated otherwise, it is siding with the prosecution much more in the latter, more recent years of the five year period than it did in the earlier years. The progression from the last five years, to the last three years, to the last two years--58% pro-prosecution to 63% to 67%--is not insignificant. It may not reflect a wholesale reversal of an ideological pattern. But it is, nonetheless, an unmistakeable change. From a roughly balanced, moderately pro-prosecution record, to one that is clearly and increasingly strongly pro-prosecution.
What is the source of this change? Let's take a look at the voting figures.
Interestingly, the court's most pro-prosecution member over the five year period, Justice Serna, actually became considerably less so in recent years. His 81% over the full five years dropped to 74% for the last three years, and dropped further to 67% in the most recent two years. Moreover, his record was the only one among the justices to move in a pro-defendant direction.
The court's other strongly pro-prosecution justice became even more so in recent years. Justice Maes' voting record for the five year, three year and two year periods was 73%, 79%, and 83%, respectively. Not a dramatic pro-prosecution jump. But movement in one direction which was certainly not pro-defendant.
Justice Minzner's voting record also seemed to move somewhat in a pro-prosecution direction overall. But as her 48% to 63% to 56% record for the five, three and two year periods reveals, her voting did not move consistently in a pro-prosecution direction. Also, her record for the entire five years was almost perfectly balanced (pro-defendant by one vote [12 to 11]), and her record for the most recent two years [actually, one year due to her untimely death in August 2007] was likewise almost perfectly balanced (pro-prosecution by one vote [5 to 4]).
That leaves the two members of the court with the strong pro-defendant records over the last five years. Chief Justice Chavez did not alter course. His voting--73%, 68%, and 67% for the five, three, and two year periods-- shows only the slightest proportional increase in pro-prosecution votes. He ended the five year period as he began: with a record clearly showing strong sympathies for arguments made on behalf of the accused.
The story for the other member of the court with an overall pro-defendant record, however, is quite different. Justice Bosson's record shows a significant shift in voting. Indeed, his record changed over the course of the five years from strongly pro-defendant to moderately pro-prosecution. His voting record for the entire five year period was 65% pro-defendant. In the last two years it was 58% pro-prosecution. In short, though he voted nearly twice as frequently for the defense as for the prosecution over the entire five years, in the most recent years he has actually been siding with the prosecution most of the time.
In sum, the fairly dramatic change in Bosson's voting record, together with the slighter change in Maes record, seems largely responsible for the decisional record of the court moving in a pro-prosecution direction. Indeed, moving from one roughly divided between pro-prosecution and pro-defendant rulings, to one which has been strongly pro-prosecution in the most recent years.
Tuesday, September 2, 2008
Arizona Supreme Court: Few Divisions But Notable Revelations in Criminal Cases (Part 2: The Voting [Ideological] Spectrum)
Last week on the New York Court Watcher, we took a first look at the voting records of the Arizona justices in the 10 criminal decisions in which the high court was divided over the past five years. Not many decisions, but revealing nevertheless. (See Arizona Supreme Court: Few Divisions But Notable Revelations in Criminal Cases (Part 1: The Court and the Chief, August 27, 2008.) Now if the graph in that post is rearranged, the voting spectrum--i.e., the ideological pro-prosecution versus pro-defendant spectrum--comes into even sharper focus. The breadth of the range becomes clearer. The differences among the justices a bit more stark.
GRAPH 2
As shown in GRAPH 2, the starkest contrast is between the records of Chief Justice McGregor and Justice Hurwitz--between the two ends of the court's ideological spectrum in criminal cases. At one end is her record of taking the more pro-prosecution position in all the divided cases the past five years (10 out of 10); at the other is his record of taking that position only once since he joined the court (1 out of 6). Other than that sharp contrast, what their records also reflect is that these two justices voted together only once in the divided criminal cases since Hurwitz joined the court. Stated otherwise, McGregor and Hurwitz were on opposite sides in each divided criminal case in which they both participated but one.
Well between McGregor's 100% pro-prosecution record and Hurwitz's 17% are the records of the other three current members of the court. Justice Michael Ryan's record for the divided criminal cases over the past five years was 67% pro-prosecution (6 pro-prosecution votes out of the 9 cases in which he participated); Justice Rebecca White Berch's record was 60% (6 out of 10); and Justice Scott Bales' was 60% (2 out of 5). Although Bales, the newest justice, was on the court for only half of the divided cases, he nevertheless took the side more favorable to the accused twice--i.e., 2 more times than McGregor. [BTW, both McGregor and Bales clerked for U.S. Supreme Court Justice Sandra Day O'Connor. Also, Hurwitz clerked for Potter Stewart. Now, come on, that alone is quite a line-up for a 5-member, or any member, state supreme court!]
Indeed, Ryan sided with the accused in 3 of the 9 divided cases in which he participated; Berch in 4 out of 10; and as already noted, Hurwitz in 5 out of 6. Again, besides the contrast with McGregor's 0 out of 10, these respective records also mean that each justice disagreed with McGregor in each case in which that justice voted pro-defendant. Bales 2 (out of 5), Ryan 3 (out of 9), Berch 4 (out of the full 10), and Hurwitz 5 (out of 6). [Retired Chief Justice Charles Jones participated in 4 of the 10 divided cases. He voted twice for the accused and, thus, twice on the opposite side as McGregor.]
The point of all this is not at all that McGregor's record is misguidedly lopsided, that she was wrong and her colleagues were right, that there is some ideal pro-prosecution and pro-defendant mix in a voting record, that her more pro-defendant colleagues are wiser or fairer or more open-minded, that she is too conservative, that she cares too much about crime control and too little about due process. No. Not at all. Indeed, the very opposite may be true. Her record is highlighted only because, at 100%, it is easy to use as a basis for comparison with the voting of the other justices.
The only point here, and the only one that can safely be made on the basis of these raw voting figures in the 10 divided cases, is that there certainly is a spectrum on the Arizona Supreme Court. On a court that very rarely divides, the divisions speak very loudly. These 10 divided criminal cases are the ones where at least one justice felt too strongly to adhere to the court's near-overwhelming practice of unanimity. And when that unanimity was broken, there were two publicly manifested sides. Each justice had to choose between the strongly-felt openly-taken positions.
These choices, the justices' votes in these cases, can tell us a great deal. And some of what they tell us is that, on the tough cases that divided the current members of the court, Chief Justice McGregor was staunchly pro-prosecution; Justice Hurwitz was very sympathetic to arguments on behalf of the accused; and Justices Berch and Ryan were moderately pro-prosecution--more often than not siding with the prosecution (and thus with McGregor), but sometimes finding more merit in the positions favoring the accused.
In short, this court, with a 70% pro-prosecution decisional record in divided criminal cases, has a wide spectrum of individual justices' voting records. And those voting records reflect that on any given difficult case that divides the court, both the prosecution and the defense have a real chance of getting the necessary three votes for a majority.
And as for the majority, a forthcoming post will look at the alignment of the justices with the majority and the dissent in these criminal cases. It will also look at the sides taken by the justices when they do break with the majority and author or join a dissenting opinion.
Well between McGregor's 100% pro-prosecution record and Hurwitz's 17% are the records of the other three current members of the court. Justice Michael Ryan's record for the divided criminal cases over the past five years was 67% pro-prosecution (6 pro-prosecution votes out of the 9 cases in which he participated); Justice Rebecca White Berch's record was 60% (6 out of 10); and Justice Scott Bales' was 60% (2 out of 5). Although Bales, the newest justice, was on the court for only half of the divided cases, he nevertheless took the side more favorable to the accused twice--i.e., 2 more times than McGregor. [BTW, both McGregor and Bales clerked for U.S. Supreme Court Justice Sandra Day O'Connor. Also, Hurwitz clerked for Potter Stewart. Now, come on, that alone is quite a line-up for a 5-member, or any member, state supreme court!]
Indeed, Ryan sided with the accused in 3 of the 9 divided cases in which he participated; Berch in 4 out of 10; and as already noted, Hurwitz in 5 out of 6. Again, besides the contrast with McGregor's 0 out of 10, these respective records also mean that each justice disagreed with McGregor in each case in which that justice voted pro-defendant. Bales 2 (out of 5), Ryan 3 (out of 9), Berch 4 (out of the full 10), and Hurwitz 5 (out of 6). [Retired Chief Justice Charles Jones participated in 4 of the 10 divided cases. He voted twice for the accused and, thus, twice on the opposite side as McGregor.]
The point of all this is not at all that McGregor's record is misguidedly lopsided, that she was wrong and her colleagues were right, that there is some ideal pro-prosecution and pro-defendant mix in a voting record, that her more pro-defendant colleagues are wiser or fairer or more open-minded, that she is too conservative, that she cares too much about crime control and too little about due process. No. Not at all. Indeed, the very opposite may be true. Her record is highlighted only because, at 100%, it is easy to use as a basis for comparison with the voting of the other justices.
The only point here, and the only one that can safely be made on the basis of these raw voting figures in the 10 divided cases, is that there certainly is a spectrum on the Arizona Supreme Court. On a court that very rarely divides, the divisions speak very loudly. These 10 divided criminal cases are the ones where at least one justice felt too strongly to adhere to the court's near-overwhelming practice of unanimity. And when that unanimity was broken, there were two publicly manifested sides. Each justice had to choose between the strongly-felt openly-taken positions.
These choices, the justices' votes in these cases, can tell us a great deal. And some of what they tell us is that, on the tough cases that divided the current members of the court, Chief Justice McGregor was staunchly pro-prosecution; Justice Hurwitz was very sympathetic to arguments on behalf of the accused; and Justices Berch and Ryan were moderately pro-prosecution--more often than not siding with the prosecution (and thus with McGregor), but sometimes finding more merit in the positions favoring the accused.
In short, this court, with a 70% pro-prosecution decisional record in divided criminal cases, has a wide spectrum of individual justices' voting records. And those voting records reflect that on any given difficult case that divides the court, both the prosecution and the defense have a real chance of getting the necessary three votes for a majority.
And as for the majority, a forthcoming post will look at the alignment of the justices with the majority and the dissent in these criminal cases. It will also look at the sides taken by the justices when they do break with the majority and author or join a dissenting opinion.
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